State Ex Rel. Huff v. Reeves , 5 Wash. 2d 637 ( 1940 )

We may aptly say with Madame Roland in her Memoirs, "O liberte, comme on t'a jouee!" ("O Liberty, how thou hast been played with").

The deadliest foe of democracy is not autocracy, but liberty unrestrained. It was never contemplated by the framers of the state and Federal constitutions that any guaranty therein — right of free speech, free press, — sanctioned an abuse of such right. It was never intended that any constitutional guaranty should afford a cover for any group whose objective was the destruction by force and violence of this government. As surely as the Communist Party approximates its avowed purposes, individual liberty is destroyed. It is fundamental that a state is entitled to protect itself from the abuse of the privileges of its institutions through an attempted substitution of force and violence in the place of peaceful political action in order to effect changes in government.

The thought is ably expressed, as follows, by the attorney general:

"It was never intended that our Federal and state constitutions and statutes, or judicial decisions made thereunder, should be perverted into instrument whereby basic concepts of liberty and freedom could be destroyed. Nor was it contemplated that the privileges or guarantees of our body of laws or decisions be so extended as to become a protective suit of armor to harbor those who have the avowed purpose of obliterating that very same system of laws and the attendant privileges of a free people."

The secretary of state — all state officials — must, as a prerequisite to qualification for the office, take an oath to support the constitutions and laws of the Federal government and of the state of Washington. The rejection by the secretary of state of the certificates of nomination of the Communist Party was as expressive of her intention to preserve, protect, and defend the government as was the eloquent, yet simple, language of President Lincoln in his first inaugural address, March 4, 1861, at which time seven Southern states had already adopted acts of secession. President Lincoln said:

"You can have no oath registered in heaven to destroy the government; while I shall have the most solemn one to `preserve, protect, and defend' it."

It is a violation of both state and Federal statutes to advocate the overthrow of our government by force and violence or by subversive means. Rem. Rev. Stat., § 2563; chapter 439, 3d Sess. 76th Cong. The selective training service act of 1940 (conscription law), chapter 720, 3d Sess. 76th Cong., provides that, whenever a vacancy is caused in the employment rolls of any business or industry by reason of induction into the service of the United States of an employee pursuant to the conscription act, such vacancy shall not be filled by any person who is a member of the Communist Party or the German-American Bund. The Federal emergency relief appropriation act, chapter 432, 3d Sess. 76th Cong., provides that no alien, no Communist, and no member of any Nazi Bund organization, shall be given employment or continued in employment on any work project prosecuted under that act.

It is a matter of common knowledge, and it has been determined by judicial decision, that the Communist Party has as its principal objective the overthrow of government by force and violence. Murdoch v. Clark, 53 F.2d 155; United States v.Commissioner of Immigration, 57 F.2d 707; People v.Fitzgerald, 14 Cal. App. 2d 180, 58 P.2d 718; Skeffingtonv. Katzeff, 277 Fed. 129; United States v. Smith,2 F.2d 90; Kjar v. Doak, 61 F.2d 566.

Knowing, as we must know (23 C.J. 123, § 1937), and as the secretary of state knew, that the Communist Party's objective was the overthrow of established government by force and violence, we should approve the action of the secretary of state which evinced a high and proper regard for her oath of office. The Communist Party is an outlaw, and, as we said in State ex rel. Hamilton v.Martin, 173 Wash. 249, 23 P.2d 1, in which we approved, for relief of the poor, a bonded indebtedness in excess of the constitutional debt limitation without submission to the voters at a general election as prescribed by the constitution:

"It is not to be considered that our constitution makers contemplated that there must be actual, armed, insurrection, with bloodshed, before taking steps and providing means with which to suppress it."

In the rejection of the certificates of nomination or the individual declarations of candidacy of the relators, the secretary of state did not interfere with the free exercise of the right of suffrage of the relators. They had the privilege of voting in the regular primary election, and they have not been denied the privilege of participating in the general election. Their organization is not, in fact, a national political party; it is an international organization, whose avowed purpose is to overthrow organized government by force and violence. No constitutional rights of the Communist Party have been abridged by rejection of the certificates of nomination.

With all deference to my associates, I say it is a mistaken policy to issue the writ in this case and thereby encourage an adjudged outlaw, by such tacit sanction of the outlaw's abuse of constitutional guarantees, to continue a course which may result in armed insurrection and bloodshed. Time does not permit, nor, possibly, would aught worthwhile be subserved thereby, further discussion of the merits or the technical feature of the proceeding, on both of which the application for the writ should be denied.